The Blog of International Judicial Assistance | By Ted Folkman of Murphy & King

The Belfast Project: Who Promised Confidentiality?

Posted on January 9, 2012

The Boston College Subpoena blog has posted the transcript of a radio interview with Anthony McIntyre, one of the forces behind Project Belfast and one of the unsuccessful intervenors in the proceedings here in Boston aimed at quashing the government’s subpoena to Boston College. The interview addresses one of the questions I’ve long had about the case: who, exactly, promised the interviewees confidentiality, and on what terms?

The Interview

Here is what McIntyre had to say:

The assurances from Boston College were very firm. In 2000, when the project was first mentioned, I asked specifically, what would be the arrangements? I was told by the Boston College representative, whom I met in Belfast, that under no circumstances would they accept archival material into their library to form part of their archive if there was any possibility, the remotest possibility, of legal repercussions, for those who had donated their interviews. And they were very specific about this. The Loyalist researcher also asked them the same thing. And he was told it was firewalled against any legal incursion from the British.

[Q:] Did you have that in writing? Did you have legal assurances?

[McIntyre:] We had a contract in writing, a Donation Agreement, which was given to the people concerned, the people who were doing the interviews, which explicitly stated that they, at all times, would be in control of the release of the information and only they, and no one else, could release it prior to the death.

And here is Jack Dunn, a spokesman for Boston College:

I think that our good friends in Ireland seem to lack a fundamental understanding of the American legal process. We fought the fight and the fight was lost. And our hope is that the second round of the fight may prove differently. I think what hasn’t been stated here is that when this agreement was reached, an agreement was signed between BC and Ed Moloney that stated that each interviewee is to be given a contract guaranteeing confidentiality to the extent that American law allows. That seems to be forgotten by Mr. McIntyre and Mr. Moloney. That they were told to tell the interviewees that the confidentiality would be given to the extent that American law allows.

[Question:] Why then, in the agreement for donations, or the Donations Agreements, as they are referred to, which were drawn up by Boston College on Boston College headed paper, was that not referred to? I’ll quote what the Agreement for Donations says:

Point Three: access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with The Burns Librarian.

At no point in the agreement is US law or any pre-condition or caveat entered.

[Dunn:] The agreement between Moloney and McIntyre is bound by an earlier agreement, Agreement “A”, which states each interviewee is to be given a contract guaranteeing confidentiality to the extent American law allows.

[Question:] Yet Boston College issue a very clear agreement in which it didn’t mention US law or any other caveat.

[Dunn:] That’s not true, I have the agreement, I’m reading from it. Each interviewee is to be given a contract guaranteeing confidentiality to the extent American law allows. And the agreement between Moloney and McIntyre is governed by the earlier agreement, referenced accordingly. We can agree to disagree on that.

What BC Said in Court

Interestingly, in its motion to quash the subpoena, Boston College did not suggest that the promise of confidentiality was a promise only to the extent permitted by American law:

Potential interviewees for the Belfast Project were therefore assured that their identities and the contents of their interviews would be kept confidential and not disclosed until the earlier of their agreement to permit disclosure or their death. McIntyre Affidavit, ¶¶ 6-7. The person who interviewed Dolours Price believed that there were no circumstances under which disclosure would be required, and would not have participated in the Belfast Project if he had thought otherwise. Id., ¶ 8. Dolours Price was expressly informed of this condition and relied upon it in giving her interviews. Id., ¶ 6.

Another interviewee, Brendan Hughes, who received the same commitment, died in 2010. Moloney Affidavit, ¶ 26. The interview materials of Brendan Hughes, which were also sought by the subpoenas to Boston College, have already been produced by Boston College in accordance with the subpoenas because the embargo on access to them ended with his death.

The assurances of confidentiality at the start and during the interview process were subsequently documented when the interviews were concluded. Each interviewee was given a form to donate his or her interview materials to the Burns Library at Boston College on the express condition that the materials would not be disclosed, absent the interviewee’s permission, until after his or her death. O’Neill Affidavit, ¶ 6; McIntyre Affidavit, ¶ 9; Moloney Affidavit,¶ 29.

The caveat does appear, however, in the contract between BC and Ed Moloney, which was an exhibit to McIntyre’s affidavit:

Each interviewee is to be given a contract guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if this becomes necessary, as outlined herein.

But the caveat does not appear in the “Agreement for Donation” that the interviewees were given (also attached to McIntyre’s affidavit), which provided simply:

Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power ofrelease shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.

My Take

I think we need to distinguish two issues. First, what promises were made to the interviewees; and second, what effect, if any, do those promises have on the government’s subpoena?

On the first question: It seems likely to me that based on the “Agreement for Donation”, the interviewees subjectively believed that the confidentiality of their interviews were guaranteed. I say subjectively, because I do not think it is objectively reasonable for a person to believe that a promise of confidentiality from Boston College could prevent the government from obtaining the materials with a subpoena. The contract with Moloney shows that the College and Maloney were on notice that US law could limit their ability to promise confidentiality; but that awareness did not make it into the agreement that was shown to the interviewees. In hindsight, I think the College (and probably Moloney and McIntyre) wish it had, although if it had, perhaps the interviewees would have been unwilling to participate in the project.

On the second question: For reasons I have given elsewhere, I do not believe that the College’s promise of confidentiality has any effect on the government’s subpoena.

1 Comment

Chris Bray commented on this post at the Boston College Subpoena blog. Comments aren’t open there, so I’ll comment here on his post. I think Chris got my post pretty much right, except that he omits what I think is an important point: even if the interviewees did not know that there was a risk of a subpoena, they should have known. So there is some blame that attaches to BC and to Moloney and McIntyre, but there is also some blame that attaches to the participants themselves, in my view.

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